Obama’s Exquisite Balance On Marriage, Ctd

The president says rather more dispassionately what I believe. I believe the right to marry is vested in the very Declaration of Independence, and that gay people have as deep a right to it as straights as it is currently composed. But I don’t want that view to be forced, rushed or coerced into action by the Supreme Court, especially when America, and so many states are moving so fast toward equality anyway. Why not keep the judicial decisions limited so as to make the political victories more profound? If there was no way a tiny minority could win th democratic argument, it would be one thing. But in a matter of a decade or so, we have persuaded over half the country and a huge majority of the next generation. Why would I want to give the religious right the satisfaction of saying it was forced on people by unelected judges? Why not get the results of a Roe v Wade without a Roe vs Wade?

Marty Lederman outlines five ways SCOTUS could rule on Prop 8. Part of his analysis focuses on the “eight-state solution,” supported by the Obama DOJ, “which would directly affect only those states (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that already treat same-sex couples the same as opposite-sex couples in virtually all ways” but refuse to call their unions “marriage”:

As I noted yesterday, in a rather remarkable development, four of the eight states that provide same-sex couples with virtually all incidents of marriage–Delaware, Illinois and Oregon, in addition to California itself–have filed amicusbriefs urging the Court to affirm the judgment of the court of appeals declaring that Proposition 8 is invalid, and making an argument that would, if accepted, appear to seal the fate of their own laws, as well.

The eight-state holding would permit the Court to avoid for now any decision on whether some other states might have a sufficient justification for denying same-sex couples substantial benefits and privileges that they offer to opposite-sex couples. As Lyle notes, such a holding would of course make it much more difficult for the remaining 33 states to sustain their marriage laws against constitutional challenge. But the ultimate fate of such statutes would depend on future litigation and/or on political developments. That is to say, the Court would cast a shadow over the laws of the other thirty-three states, without resolving just yet whether they are constitutional.

First, the President knows that Justice Kennedy is the likely swing vote in this case and Justice Kennedy is a cautious, conservative jurist. He has a history of respecting states’ rights above all else and often rejects sweeping policies that reek of overreach. Incremental change, if any change at all, seems to be his mantra, as Professor Kenji Yoshino has argued many times before. The compromise position may be aimed at Justice Kennedy’s cautious nature, giving him room to support gay rights without undermining the driving force of his judicial career.

Second, step-by-step progress may aggravate those of us who want to marry, but can’t, but slow progress denies our opponents fodder to foment backlash.

Mark Tushnet ponders the consequences of such a ruling on future state legislation:

[T]he eight-state solution would force legislators in other states to an all-or-nothing choice. Is that a perverse incentive, or more like holding legislators’ feet to the fire? The eight-state solution tells legislators that, despite what they might prefer, they can’t avoid confronting the issue of marriage equality by adopting something just a bit short of that. (Presumably, even were the eight-state solution to become the law of the land, legislators could avoid enacting full marriage equality by going less far than California and Illinois did in equalizing the rights available to straight and gay/lesbian couples.)